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May one accused of bigamy be freed due to later nullity of marriage?

Love and marriage are essential to a happy and lasting relationship. The best way to know if one really loves you is through an action rather than words. But when words and action go together, love is greatest – saying ‘I love you’ and ‘will you marry me’ that ends in actual marriage is true love.

The law protects the validity of marriage. Our Constitution considers it as an inviolable institution and foundation of the family that shall be protected by the State [Section 2, Article XV]. Under our Family Code, it is a special contract of permanent union between a man and a woman for the establishment of a conjugal and family life. It is governed by law and not subject to stipulation [Article 1].

As such, one can only get married once. This is the concept of monogamy. Marriage cannot be violated, otherwise, you may go to jail if you married twice. This is called bigamy [marrying the second time while the first marriage is still existing]. Marrying more than twice is polygamy.

Article 349 of our Revised Penal Code defines bigamy as a crime when one shall contract a second marriage before [i] the first marriage has been legally dissolved or [ii] the absent spouse has been declared presumptively dead by means of a judgment rendered in proper proceedings. Article 40 of our Family Code states that the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. In short, before one can enter a second marriage, there must be a final judgment declaring the prior marriage void.

One can be convicted of bigamy if the offender [1] has been legally married; [2] marriage has not been legally dissolved; [3] contracts a second marriage; and [4] the second marriage has all the essential requisites for validity. One cannot use a petition of nullity of marriage as a defense. But, on 27 July 2021, our Supreme Court en banc [with 15 justices] in the case of Pulido v. People, G.R. No. 220149 ruled an issue of whether an accused indicted for bigamy may be freed on the basis of judicial declaration of nullity of his first or second marriage.

The facts are as follows: In 1983, Luisito was 16 years old when he married his 22-year old teacher Nora. In 1995, Luisito married Rowena, which Nora discovered in 2007. Hurt by the betrayal, Nora charged them of bigamy. As defense, Luisito argued that his marriages were void because his first marriage has no marriage license and his second marriage has no ceremony. As defense, Rowena presented the RTC decision annulling her marriage for being bigamous that she filed when she learned the first marriage of Joselito.

In 2009, the Las Piñas RTC convicted Joselito but acquitted Rowena. In 2015, the Court of Appeals affirmed the RTC’s conviction and sentenced him to eight years. Joselito appealed to the Supreme Court. While his appeal was pending, he presented the 2016 Imus RTC decision declaring the first marriage void for lack of marriage license. He moves for acquittal. The State opposed it because bigamy has been consummated when he made the second marriage before the first marriage was declared void.

After a careful scrutiny of the records and rigorous reexamination of the applicable law and jurisprudence, our Supreme Court found basis to abandon their earlier pronouncement and now holds that a void ab initio marriage is a valid defense in the prosecution for bigamy even without a judicial declaration of absolute nullity. In effect, Article 40 of the Family Code [that became a law in 1988] has retroactive application on marriages contracted prior to its effectivity [as the marriage of Nora and Joselito happened in 1983], but only for the purpose of remarriage. The parties are not allowed to judge for themselves the nullity of their marriage. But, in a criminal prosecution for bigamy, parties may still raise the defense of void ab initio marriage even without getting a judicial declaration of absolute nullity if the first marriage was celebrated before 1988 [effectivity of the Family Code]. This is because a void ab initio marriage is not valid from the very beginning. Though the judicial declaration of the first marriage as void ab initio happened in 2016, it retroacts to 1983 [first marriage of Joselito with Nora] and accused was considered never married in the eyes of the law. With the nullity of the first marriage, the first element of bigamy, that is, accused must have been legally married, was lacking. Thus, our Honorable Supreme Court reversed the CA and RTC decision leading to the acquittal of Joselito Pulido of bigamy.

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